Bombay High Court
Syed Abdul Hassan Karimulla vs Razik Hussein Afazal Hussein on 27 June, 1986
Equivalent citations: AIR 1987 BOMBAY 60, ILR 1987 BOM 370 (1987) ILR BOM 370, (1987) ILR BOM 370
JUDGMENT
1. Razik Hussein Afzal Hussein since deceased seems to have had an ultruistic bent of mind. Razik hails from Ajamgarh in U.P and the city of Bombay which has acted as a load-store for many a young men all over the country also attracted him. Razik came to Bombay in 1938 and started living in Room No. 17 on the first floor of Habib Manzil, Huseini Baug, Madanpura, Bombay 8. Razik secured a job as cable jointer in Indian Cable Co., and when the news or Fazik's achievements reached his village his other relatives from the village started coming over to Bombay in search of employment. Razik acted as their mentor and used to permit them to stay with him in room No. 17. They would leave the room only when they obtained alternative accommodation and employment.
2. As was expected in course of time Razik found room No.17 to be inadequate to accommodate all the members of his family and the visiting relations, and hence took another room being room No. 49 on second floor in Betwala Chawl, (also know as Huseini Building), Madanpura, Bombay 8. The tenancy of room No 17 of Habib Manzil continued to stand in the name of Razik, but he handed over the room to his brother Safutulla who shifted to room No. 49 along with some of his relatives in 1951.
3. As observed earlier many relations of Razik used to say with him and one such relation happened to be Syed Abdul Hassan s/o Karimulla who was the son-in-iaw of his father's sister, the one who figure as a defendant. The other relations were Mujameel Hussein his sister's son. Fakruddin, father's brother's son, Mohamed Juned and Faruk both brothers of his wife.
4. As the influx continued, even this shift to room No.49 did not solve Razik's problems of over crowding and hence he took another room being Room No.43 in the same building. The room was taken from one Aminabai who was occupying that room and according to Razik, the room was taken in the name of defendant and the receipts for the amounts paid to Aminabai were also obtained in his name though the funds came from razik's pocket. It is the stand of Razik that this arrangement was arrived at because he was given to understand that one person could not take two rooms in his name. After taking this room No. 43 the same procedure as was followed earlier when Razik took room No. 49 was repeated, that is to say, some of the occupants of room No. 49 were shifted to room No.43 to case the congestion.
5. The defendant Syed Abdul Hassan had by then brought his wife to live in room No.43. It is alleged that the defendant started troubling his wife, that is the plaintiff's sister. Enraged, the plaintiff asked him to vacate room No.43 which order he complied and shifted to room No.6 Subrati Chwal, Kurla. A reconciliation was effected between the defendant and his wife who has by then been sent away to her native place and the defendant was rehabilitated in room No. 43 along with his children. Having entrenched himself in room No.43, so the case of the plaintiff proceeds the defendant started asserting his title to room No. 43 and hence Razik decided to convene a panchayat to settle the dispute. Five or six prominent persons of community sat in the room of Master Ali Kadar in Loheki Chawl, Madanpura as a panchayat to the jurisdiction of which both the parties subjected themselves. The award of the panchas was reduced in writing and signed by the parties. According to the plaintiff, the award of the panchas was an agreement between him and the defendant under which the defendant was to pay to him Rs. 2,960/- in four instalments and retain the room. Upon default of any instalment, the plaintiff was to pay Rs.2,040/- to the defendant upon receipot of which the defendant was to hand over vacant possession of the room to the plaintiff. According to plaintiff, the defendant committed default except for the first instalment of Rs. 750/- which he paid on 15th October 1966. As the defendant committed default of the payment of second instalment which fell due on 15th November 1966, the plaintiff got a right under the agreement to pay Rs. 2,040/- to the defendant and get possession of the room. The plaintiff along with Jabbar, one of the panchas, proceeded to meet the defendant for paying Rs. 2,040/- which payment was refused by the defendant. The defendant with the help of police threw away the plaintiff's belongings from room No. 43 and hence the plaintiff filed a S.C. Suit No. 1280 of 1967 for a declaration that he has become entitled to exclusive use and occupation of room N0.43 in Huseini Building on payment of Rs.,2040/- to the defendant and consequential reliefs.
6. The defence is that there was never any question of possession of room No. 43 being referred to the panchayat. He alleges that the plaintiff practised fraud by deceitfully manipulating certain blank piece of papers on which the defendant's signature was obtained at the time of reference of dispute relating to a loan transaction between the parties. The defendant maintains that he took the room in question from Aminabai who Jan Mohamed by writing dated 14th September 1954 which document was signed by the plaintiff as an attesting witness. The defendant alleges that he had taken a loan of Rs.450/- from the plaintiff but the latter made an exorbitant demand of Rs. 750/- and the matter relating to the loan transaction was referred to the Jamat. At the time of reference to Jamat, the parties signed a blank piece of paper and the members of the Jamat informed him that he had to pay to the plaintiff a sum of Rs. 750/- which he accordingly paid. Disbelieving the defence the trial Court decreed the suit in to giving rise to the present appeal.
7. Mr. Vilas Kamat, learned Counsel for the appellant attacked the judgment of the trial Court on the ground that there has been a failure of appreciation of evidence and facts and circumstances of the case. In the first place, Mr. Kamat under scored the fact that the custody of the so called agreement award was all the time with the plaintiff and that is was for the first time in March 1984 when Mr. Shaikh learned Advocate for the defendant had taken inspection of the same in the office of the Counsel for the plaintiff that the defendant discovered that the blank paper on which he had signed has been converted into an award. If the custody of the so called agreement has been all the time with the plaintiff of his Counsel, it was well nigh possible for the defendant to understand what the terms of the agreement were and hence his story that the agreement was drawn upon a piece of blank paper should be accepted. According to Mr. Kamat, the defendant was satisfied with the award of the Jamat which asked him to pay Rs.750/- for the loan which he had taken which payment he made immediately on 15th October 1966, that is within six days of their so called award on 9th October 1966. Secondly, Counsel submits that the nature of the dispute that was referred to the Jamat was never explained to the defendant who all the time felt that the Jamat has been convened for the purpose of settlement of the transaction of the loan. Thirdly, it is urged that the panchas being the members of the Jamat never visited the room in question which lends credence to the story of the defendant that all of them thought that the dispute pertained to loan transaction. Fourthly, Mr. Aminbai on 14th September 1954 under which she purported to give the suit room, that is room No.43, second floor, Baithaki Chawl, Mohammedan Street, to the defendant and induct him therein for a cash consideration of Rs.660/- and the fact that it is the plaintiff himself as well as Jalil Ahmed, one of the panchas who have attested the document. Lastly, Mr. Kamat urged that an examination of Exhibit B1 the so called award cum agreement shows that the style of writing does not conform to the Urdu style of writing from right to left, otherwise the writing should have started immediately below the figure '786' regarded auspicious by the Muslim community. and the narration continued from right to left.
8. Mr. Meghani learned Counsel for the respondents supporting the judgment says that the controversy in the suit lies in a narrow compass as to what dispute was referred to the Jamat for settlement. A reading of Exhibit B2 shows that the parties not only had referred the dispute to the Panchas, but again agreed to abide by the decision so rendered and it is the second agreement upon which the suit has been founded. The defendant has admitted that he produced two persons, tow of this confidents namely, Abdu; Jalil and Abdu Hafiz before the panchas to prove his continuous occupation of the room which would have not been necessary argues Counsel if the dispute was only with reference to the return of the loan as alleged by the defendant. The defendant also admitted that the first question asked of him was as to the right which he had to the room in suit. This again, according to Mr. Meghani destroys the case of the defendant that the room was not the subject-matter of the dispute. The defendant would have abided by the agreement continues Counsel but for the fact that a couple of days after paying the first instalment of Rs. 750/- the defendant was successful in getting the rent bill of the room changed in his name. Emboldened by the fact that the room now stood in his name in the records of the landlord, the defendant thought it better to give a go-by to the agreement entered into by him. The defendant had not informed the employer, namely B.E.S.T. about his change of address all those years but lost no time in doing so once he was assured that the room stood in his name and wrote accordingly to B.E.S.T. on 29th October 1966. On the 9th November 1966 that is after the landlord had accepted him as a tenant and before the second instalment fell due, the defendant started complaining to the police that he was threatened with dispossession by the plaintiff. The defendant's witness Bashir Ahmed Ansari which is the brother of Abdul Jalil one of the panchas admits that the dispute referred to the Jamat related to the room and that the room in question which is the suit room was all the time enjoying electric supply from plaintiff's room No. 49. To meet the case of fraud set up by the defendant, Mr. Meghani places reliance on Union of India v. Chaturbhai M.Patel and Co., , in which the Supreme Court observed that fraud like any other charge of a criminal offense whether made in civil or criminal proceedings must be established beyond reasonable doubt and that however suspicious may be the circumstances, and however grave the doubts, suspicion alone can never take the place of proof.
9. To my mind the core of the controversy is predicated upon probabilities of a closely related family coming from Azamgarh to eke out a living in Bombay to enter into a transaction relating to a room of 12 ft. x 8ft. having a rental of about Rs.20/- in a crowded business locality like Byculla, Bombay. It is a matter of general knowledge that due to the pressure of land in this metropolis, the prices of tenements and rents thereof have sky rocketed making it impossible of any one to obtain a small room without paying exorbitant premium. A plain reading of the so called award shows that the room in question has been made a prize to be awarded to the two contestants under certain circumstances. If the defendant were to pay Rs. 2,960/- to the plaintiff Razik in monthly installments, he was to continue to reside in that room. Opon failure of the defendant making he aforesaid payment though a default clause as such has nnot been incorporated in the agreement the sense of the agreement is that in case of default, the plaintiff Razik was to emerge as the victor and he had to pay Rs.2,040/- to the defendant Syed Abdul Hasan. As observed above, considering the paucity of accommodation in a crowded locality like Byculla, I do not feel it to be in consonance of normal practice that one would hand over possession of a room which he was occupying right from 1954 for pittance of Rs. 3,000/-.
10. When the defendant says that the agreement is executed by fraud, his plea in effect is a plea of non est factum. The application of the plea of non est factum raises problems of some difficulty because an over broad proposition that whoever raises a plea that he did not understand the content of the document should be believed could obviously unsettle the sancity attached to a document. A recent case about the plea of non est factum would illustrate the divergence of views.
11. One Mrs. Gallie. 78 owned a house which she planned to leave to her nephew Wally Parkin. She had a mortgage on the house which she had paid off. When the mortgage was paid off she gave the Deeds to Parkin saying that the house was his but that she wanted to live there for the rest of her life Parkin had a friend Lee whom he wanted to bolige and prepared a deed under which Mrs. Gallie was to sell her house to lee for ...................(which sum was not to be paid) and then Lee could mortgage the property and raise a loan. Parkin asked Mrs. Gallie to sign the document telling her that it was a Deed of Gift to him. Mrs. Gallie having broken her glasses could not read but believing in her nephew she signed the document. As planned Lee borrowed money on the Deed and gave a mortgage but he committed default. The mortgagor sought to recover possession Mrs. Gallie sought a declaration that she was not bound by the deed to Lee.
12. The trial Judge found that Mrs. Gallie did not read the document and executed it in the belief that that was a gift to her nephew.
13. On appeal Gallie v. Lee (1969) 1 All ER (1062).Lord Denning M.R., reversing the judgment observed.
" whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which it is apparent on the face of it is intended to have legal consequences then if he does not take the trouble to read it but signs it as it reliving on the word of another as to its character or contents or effect he cannot be heard to save that it is not his document. By his conduct in signing it he has represented to all those into whose hands it may come that it is his document and once they act on ... being his document he cannot go back on it and say that it was a nullity from the beginning. It his signature was obtained by fraud or under the influence of mistake or something of the kind he may be able to avoid it up to a point but not when in all innocence advanced money on the taith of its being his document or otherwise has relied on its as being his document."
14. The house of Lords gave leave to appeal and though they dismissed the appeal Lord Wilberforce observed Saunders v. Anglia Building Society (1970) 3 All FR ............ page 971..........does it follow that there are no definable circumstances in which a document to which a man has put his signature may be held to be not his document and so void rather than merely voidable. The judgment of Lord Denning M.R. seems at first sight to suggest that there are not and that the whole doctrine ought to be discarded but a closer reading shows that he is really confining his observations to the plainest and no doubt commonest cases where a man of full understanding and capacity forbears or negligently to read what he has signed. I had in the percentage such a person should be denied the non est factum plea I would accept s to hold follows in logical development from the well-known suggested question of Mellish I .J in Hunter v. Walters, (1871) Ch App 75 and from what was said by Farwell L.Jin Howatson v. Webb (1908) (1) Ch .... But there remains a residue of difficult cases. There are still illiterate or senile persons who cannot read or apprehend a legal document, there are still persons who cannot read, or apprehend a legal document there are still persons who may be tricked into putting their signature on a piece of paper which has legal consequences totally different from anything they intended. Certainly the first class may in some cases, even without the plea be able to obtain relief either because no third party has become involved or if he has with the assistance of equitable doctrines because the third party's interest is equitable only and his conduct such that his rights should be postponed ( see National Provincial Bank of England v Jackson. (1886) 33 Ch D 1 and of Hunter v. Walter (1871) 7 Ch Appl 75 mat P 89). Certainly too the second class may in some cases fall under the heading of plain forgery in which event the plea of nen est tactum is not needed or indeed available ef. Swan v. North British Australasian Co. Ltd., (1863) 2 H & C 175 and in others be reduced if the signer is denied the benefit of the plea because of his negligence. But accepting all that has been said by learned Judges as to the necessity to eliminate it altogether would in my opinion deprive the courts of what may be doubtless on sufficiently rare occasions as instrument of justice How then, ought the principle which a plea of non est factum is admissible to be stated. In my opinion a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking i.e more concretely when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended.
Thus though normally the will not be favorably inclined towards and protect "literate persons of full capacity" if they raise the plea of non est factum the law would protect even such persons if they prove that they are "persons who have been tricked into signing the document" within the meaning of the phrase used by Lord Wilberforce. As urged at the Bar by Mr. Meghani it is for the defendant to prove that the document which he purported to execute ( by signing blank papers) was of fundamentally different nature from the document which he believed he was signing. According to the defendant, his relations with the plaintiff remained cordial for a long time, but the failure of a matrimonial proposal soured their relationship. The plaintiff desired to give the hand of his daughter Taizibunnisa to the defendant's brother-in-law Munir Ahmed. Munir Ahmed also hailed from Haji Patti Bularia Gunj District Ajamgarh and knew the parties because the plaintiff was the son of Munit's mother's brother. Munir has come to Bombay in 1956 and started living with the defendant. Some time in 1960, the plaintiff proposed to Munir that he should marry Taizibunnisa which proposal was not acceptable to Munir as he had not secured any employment by then. Probably by 1965. Munir sought a job and when Munir had visited the native place the plaintiff again broached the subject of marriage before his parents. Plaintiff has also proposed that Munir should live with him in Bombay along with his wife while Munir thought it better that his wife continued to stay with his parents in Ajamgarh rather than live with the plaintiff in room No.49. Thus the negotiations broke off and Munir married another girl.
15. In the typical Indian context of match making where marriages are settled by negotiations through friends and relatives. Someone is made the scapegoat if the negotiations flounder. As munir was the brother-in-law of the defendant the plaintiff took into his head that the proposal did not materialise because of certain impediments put by the defendant. So enraged was the plaintiff that he asked the defendant not only to quit the room No. 43 but also leave the city of Bombay as a result of which their relations became strained.
16. To substantiate his defence of the loan of Rs. 450/- the defendanthas examined Jan Mohamed Lal Mohamed who lives on the ground floor of Hussein building, Jan Mohamed is also a driver in B.E.S.T. and his father's sister lives in room No.41 which is adjoining suit room No.43. According to Jan Mohamed, the defendant wanted a short term advance of Rs. 600/- and he was prepared to accommodate him to the extent of Rs. 300/- provided the defendant were to allow him user of suit room till repayment of the loan. However he was persuaded by the plaintiff not to go ahead with the proposal because the defendant would have been denied the user of the room till payment of the loan and had nowhere to go. Defendant thus returned this advance of Rs. 300/- to Jan Mohamed and the plaintiff himself advanced Rs. 450/- expenses of his wife's journey to the native place. As the relationship between the parties became strained consequent upon the failure of the marriage proposal, the plaintiff started asking for a refund of Rs.750/- after claming unsurious interest which the defendant resisted and referred the issue to a panchayat.
17. Mr. Meghani learned Counsel for the respondents urges that the story of convening a Jamat for resolution of dispute of loan of Rs. 750/- is a cock and bull one, because the defendant as well as the other witnesses have admitted that questions were put to the defendant regarding his right to the room in question. This could be a stray question because the assignment deed from Aminabai is undoubtedly in the name of the defendant and the document has been attested not only by the plaintiff but by one of the panchas of Jamat. With this document in his possession, to support his title to the suit room which he was occupying since 1954, it seems in the highest decree unlikely that the defendant would refer the issue of a room to the Jamat though undoubtedly he had accommodated the relatives of the plaintiff in his room off and on.
18. Demographical study of the influx of the communities from other parts of India to Bombay which they regard as a land of opportunity would show that like birds of the same feather flocking together, members of a particular community gravitate towards the area where other members of their community are in sizeable majority. It may not be correct to label this tendency as being parochial but such a behavioral pattern owes its popularity due to many backgrounds. The visiting communities find it more convenient to choose a habitat as closely comparable to the one to which they were accustomed in the villages and cities from where they came to Bombay. Affinity of language, culture consanguinity way of life and the inherent gregarious tendency are some of the factors responsible for such a phenomenon. It was little wonder that families coming from Azamgad in Uttar Pradesh would prefer to stick together and live in a Chawl like Habib Manzil Husseini Baug, Madanpura where Byculla is a crowded business locality and a room 12' x 8' having electrical connection and other amenities with a rental of only Rs. 20/- per month would be a prized possession, and unless the tenant of that room has one extremely well and amassed a fortune ( as many a entrepreneur have done), he would not part with the room for generations. The successful entrepreneurs referred to abobe would be one in a million and he would, no doubt, house himself cozily in a million rupee pent-house or a bungalow in the suburbs. But most of the immigrants would not be so lucky and drudge their way through life from such a room.
19. The postwar inflation, the increasing influx of families into Bombay and the limitation on the available land space in his island city combine to sky rocket the prices of real-estate to such an extent that no person in his senses would think of foregoing his room because the only alternative for him would be to sleep on the pavements or move into a zopadpatti and live in sub-human condition. It is this axiomatic fact of Bombay's life which will have to be made the touchstone on which to judge the veracity of the evidence led in the case and probabilities of the theory canvassed by the appellant. Viewed from this angle, what does a plain reading of the so called award of the agreement show. This room No.43 in question where the appellant was residing right from 1952 has been in the manner of speaking made an object of gamble, depending upon the fulfillment of certain conditions. If the defendant were to pay Rs.2960/- to the plaintiff monthly installments as detailed in the agreement, he was to continue to reside in that room. If the defendant were to commit default in making the payment, the plaintiff was to emerge as a Victor and get the room from defendant Hasan on payment of Rs. 2040/. The defendant has been denying right from the deigning that there was any such agreement, and has canvassed that there was any such agreement, and has canvassed that he was never told about it till his Advocate took inspection of the documents in the office of the Advocate for the plaintiff. Thus the question to ask is; will a person like the defendant who had a ................................................ agree to lose the only roof he has over his head for a pittance of Rs.2040/-.
20. Under these circumstances, the admitted fact that the plaintiff's relations were also living in room No.43 for some time does not in any manner stregthen the story of the plaintiff that the room was actually taken by him on lease but the document from Aminabai was got executed in the name of the defendant to circumvent a possible objection that one person is having more than one tenement on lease. A person in possession of a room in Bombay since 1952 paying a pittance of Rs.20/- per months as rent would not leave it for a sum of Rs. 2040/- forms the determinant of this case though undoubtedly it is difficult to prove fraud and as submitted by Mr. Meghani, the entire burden as required in a criminal case rests on the defendant. I am satisfied from the evidence on record that the defendant has proved his case that he was tricked into signing blank papers thinking that the reference to the Jamat was for the loan of Rs.450/- which he had taken from the plaintiff and after satisfying the loan of Rs.750/- thought no more of it till the plaintiff surreptitiously filed a suit based on the so called agreement. I was only when Mr. Sheikh, learned Advocate for the defendant visited the office of the learned Counsel for the plaintiff that the stark reality of the defendant having signed some sort of agreement which spelt a death toll of his possession of his room dawned on him.
21. In the result, appeal is allowed with costs throughout. The judgment and decree dated 27-2-1985 in Short Cause suit No. 1280 of 1967 passed by the Bombay City Civil Court is set aside and the suit is dismissed with costs.
22. The interim order of appointment of Receiver to continue till 1st September 1986.
23. Appeal allowed.